Heaton Erecting, Inc.

Plain-English summary

OSHA alleged that Heaton Erecting violated the mobile-scaffold guardrail standard because an unguarded scaffold was more than 40 feet above the ground. The judge vacated the item because the scaffold platform was only 50 to 70 inches above its base and relied on a Commission interpretation that was later overturned. The parties had also disputed whether installing guardrails was infeasible, but the judge made no factual findings on that defense. After the Commission changed the defense from impossibility to infeasibility and reassigned the relevant burdens of proof, it remanded for additional evidence, credibility findings, and legal conclusions. The Commission retained jurisdiction pending completion of that record.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.451(e)(10)
• Outcome: Case remanded for findings on whether guardrails were infeasible and whether alternative protection was available.
• Key point: A changed infeasibility-defense framework required a factual record before the guardrail citation could be resolved.

Full text (OSHRC public release)

Docket No. 84-0452

SECRETARY OF LABOR,

Complainant,

v.

HEATON ERECTING, INC.

Respondent.

OSHRC Docket No. 84-0452

DECISION

Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(j), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the Act").  The
Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration.  It was established to resolve
disputes arising out of enforcement actions brought by the Secretary of Labor under the
Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C.
� 659(c).

The issue before the Commission is whether
Administrative Law Judge Joe D. Sparks erred in vacating a citation item alleging a
violation of 29 C.F.R. � 1926.451(e)(10).  The standard states in part:

� 1926.451 Scaffolding

(e) Manually propelled mobile scaffolds .

(10) Guardrails made of lumber, not less than 2 x 4 inches (or other material
providing equivalent protection), approximately 42 inches high, with a midrail, of 1 x 6
inch lumber (or other material providing equivalent protection), and toeboards, shall be
installed at all open sides and ends on all scaffold more than 10 feet above the ground or
floor.

The Secretary maintained that the standard was violated because the distance from the
unguarded scaffold to the ground was over 40 feet.  Based on the Commission's
decision in Schwarz-Jordan, Inc ., 11 OSAHRC 37/A2, 11 BNA OSHC 2145, 1984 CCH OSHD
� 26,989, rev'd , 777 F.2d 195 (5th Cir. 1985),[[1]] the judge vacated the item,
noting that the scaffold stood only 50-70 inches above its base and that the standard
requires guardrails only when the scaffold stands more than 10 feet above its base.

Because the judge held the standard to have been
inapplicable, he did not make findings on a dispute over the infeasibility of guardrails
that was litigated by the parties.  Since the judge issued his decision, the
Commission has substantially altered the requirements of the former defense of
impossibility.  In Dun-Par Engineered Form Co ., No. 79-2553 (July 30, 1986),
the Commission changed the primary element of the defense to "infeasibility" and
shifted the burden of persuasion to the Secretary on the issue of feasible alternative
protective measures.

We believe that the resolution of the factual dispute
over the feasibility of guardrails would substantially facilitate our review of this
case.  We note, however, that disposition of this issue may require credibility
determinations, which should be resolved by the judge.  Moreover, because the parties
were not aware of their respective burdens of proof at the time of the hearing, they
should have the opportunity to adduce additional evidence and argument on the
infeasibility defense.  We therefore remand this case to Judge Sparks for the taking
of evidence and argument on the infeasibility defense.  The judge shall also enter
findings of fact and conclusions of law consistent with our decision in Dun-Par on the
issue.  The Commission shall retain jurisdiction of the case pending receipt of these
additions to the record.

Accordingly, the case is remanded to the judge for
further proceedings consistent with this decision.[[2]]

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  JUL 31, 1986

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office by
e-mail ( [email protected] ), telephone
(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] The Commission's decision in Schwarz-Jordan
was subsequently overruled by the Fifth Circuit in Brock v. Schwarz-Jordan, Inc .,
777 F.2d 195 (5th Cir. 1985).

[[2]] Commissioner Rader agrees with the majority
that this case should be remanded for a determination whether guardrails were
infeasible.  If the Secretary seeks to allege and prove that Heaton should have used
alternative protective measures in accordance with the Commission decision in Dun-Par
Engineered Form Co ., No. 82-928, then Commissioner Rader would limit the alternative
measures sought to be imposed consistent with his separate opinion in Dun-Par .